Is DOJ Still Hiding Their Logic Behind Use of Drones to Execute American Citizens?

Back in June, I compared the content of Charlie Savage’s account of the Awlaki drone memo with the content of the July 16, 2010 memo released that month. I noted that Savage reported the memo discussed whether killing Awlaki would violate the “ban” on assassinations in EO 12333, but the July memo did not. I suggested the earlier memo probably included that section.

Before Savage’s report turns to the consideration of 18 USC 1119 — which is where the memo starts its analysis — it describes a section considering whether the “ban” (in an unenforceable Executive Order that gets changed from time to time without notice in the actual text) on assassinations would prohibit such a killing.

It then considered possible obstacles and rejected each in turn.

Among them was an executive order that bans assassinations. That order, the lawyers found, blocked unlawful killings of political leaders outside of war, but not the killing of a lawful target in an armed conflict.

No discussion of assassination appears in the memo (unless it appears in a classified section and is not noted by the court opinion, but that seems unlikely as there’s no logical place for it). That said, the “ban” on assassinations did appear prominently in Harold Koh’s justification for drones given in March 2010.

Fourth and finally, some have argued that our targeting practices violate domestic law, in particular, the long-standing domestic ban on assassinations. But under domestic law, the use of lawful weapons systems—consistent with the applicable laws of war—for precision targeting of specific high-level belligerent leaders when acting in self-defense or during an armed conflict is not unlawful, and hence does not constitute “assassination.” 

This leads me to suspect the structure of the first memo may parallel the structure of Koh’s speech, with the assassination “ban” figuring prominently in that memo. That is, it seems likely Savage’s sources, in conflating the two memos (if that’s what they did), included that language because it appeared in the first memo.

Voila! The memo released Friday — dated February 19, 2010 — does indeed focus on the assassination “ban,” though much of that discussion, like the entire memo, remains redacted.

[T]he use of lethal force against Aulaqi would not violate the assassination ban in Executive Order 12333.

And if you add the length of the February (7 pages) and July (41 pages) OLC memos and round up, you get the rough page length Savage’s sources provided: 50 pages.

So it does seem that Savage’s sources just synthesized the two memos as one.

That said, comparing Koh’s March 2010 speech presumably incorporating OLC’s assassination discussion with the (overly redacted) memo raises another question.

Several words in the title of the memo remain redacted.

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I wonder — and this is a guess — whether the redacted words pertain to using drones to executive an American citizen?

I ask that because Koh’s speech includes this paragraph about drones and other high tech weapons.

Second, some have challenged the very use of advanced weapons systems, such as unmanned aerial vehicles, for lethal operations. But the rules that govern targeting do not turn on the type of weapon system used, and there is no prohibition under the laws of war on the use of technologically advanced weapons systems in armed conflict– such as pilotless aircraft or so-called smart bombs– so long as they are employed in conformity with applicable laws of war. Indeed, using such advanced technologies can ensure both that the best intelligence is available for planning operations, and that civilian casualties are minimized in carrying out such operations.

That is, I wonder whether some significant part of the 7 pages David Barron originally dedicated to weighing Awlaki’s due process free execution pertained to whether using drones to kill him changed the legal question?

Another possibility for the redacted phrase is a reference to Yemen, though the 2nd Circuit has already deemed that unclassified. Or, perhaps, this memo started the discussion of CIA’s involvement in an execution, which would explain the focus on EO 12333, which governs their covert operations.

In any case, it does seem that the Administration self-justification evolved over the first half of 2010, and only later in the year did the Department of Justice consider whether there were laws that might prohibit CIA from executing a US citizen with no due process.

Marcy has been blogging full time since 2007. She’s known for her live-blogging of the Scooter Libby trial, her discovery of the number of times Khalid Sheikh Mohammed was waterboarded, and generally for her weedy analysis of document dumps.

Marcy Wheeler is an independent journalist writing about national security and civil liberties. She writes as emptywheel at her eponymous blog, publishes at outlets including the Guardian, Salon, and the Progressive, and appears frequently on television and radio. She is the author of Anatomy of Deceit, a primer on the CIA leak investigation, and liveblogged the Scooter Libby trial.

Marcy has a PhD from the University of Michigan, where she researched the “feuilleton,” a short conversational newspaper form that has proven important in times of heightened censorship. Before and after her time in academics, Marcy provided documentation consulting for corporations in the auto, tech, and energy industries. She lives with her spouse and dog in Grand Rapids, MI.

7 replies
  1. orionATL says:

    “..whether using drones to kill him changed the legal question?…”

    of course using drones changed the legal questions.

    drones are weapons (as used in yemen).

    therefore the rules of war apply.

    therefore al-awlaki can be whacked by the paramilitary branch of the whitehouse at prez’s request.

    QED

    any harvard law graduate could figure that one out. and who needs more than seven pages to write it all out for the prez and posterity.

    • orionATL says:

      correction:

      “drones are weapons (as used in yemen)”

      should read

      “drones are weapons of war (as used in yemen)”

  2. wallace says:

    quote” But the rules that govern targeting do not turn on the type of weapon system used, and there is no prohibition under the laws of war on the use of technologically advanced weapons systems in armed conflict– such as pilotless aircraft or so-called smart bombs– so long as they are employed in conformity with applicable laws of war. Indeed, using such advanced technologies can ensure both that the best intelligence is available for planning operations, and that civilian casualties are minimized in carrying out such operations.”unquote

    So long as they are employed in conformity with applicable laws of war? Really? The CIA???

    BWAAHAHAHAHAHA..HOHOHOHOHO…HEEHEHEHEHEH…HAHAHAHHAHHA!!!!!!!!!!!!!!!!!!

    Shades of conflict of interests…
    From Senate hearing testimony on Section 218 sunset:

    quote”The CIA acts overseas, in secret, and its mission includes
    violating the laws of the country in which it is operating when
    necessary. It is charged with collecting information overseas without
    regard to individual privacy, rights against self-incrimination, or
    requirements for admissibility of evidence. It is also tasked with
    carrying out covert actions to influence events by whatever means the
    President authorizes. The agency gives the highest priority to
    protection of its sources and methods.”

    Carrying out covert actions to influence events by whatever means the
    President authorizes…even if it means ignoring the rules of war, the EO12333, and the Constitution to vaporize 16yr old American citizens. Gottcha.

    Now that we’ve settled that.. how bout a nice hot bowl of Michigan gumbo?

  3. wallace says:

    ps, these scumsucking bottom dwelling OLC lawyers are the living embodiment of the difference between a catfish and a lawyer. They’d write a memo that legalized sending their mother into sexual slavery if there was a lifelong appointment to the bench in it. I don’t know how other people can stand the stench of being around them, let alone looking them in the eye. But I do know this. They’ll go down in the annuls of War Criminals for eternity.

  4. What Constitution? says:

    Fascinating that they spend time writing “new” “updated” and “revised” purported justifications for executing a US citizen without due process — all the while publicly contending that they are the only ones who have any input in the decision or its review. Isn’t that what’s otherwise known as “consciousness of guilt”?

    • wallace says:

      quote”Fascinating that they spend time writing “new” “updated” and “revised” purported justifications for executing a US citizen without due process …”unquote

      Indeed. It happens every time Obomber has a nightmare about a trapdoor opening under his feet with a hangman’s noose around his neck.

  5. wallace says:

    hmmm…now that I think about it, it’s high time Obomber says…”we murdered some American folks. But let’s not get all sanctimonious, ok?”

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